Study suggests racial mislabeling skews McHenry County sheriff data

According to the McHenry County sheriff's official records of traffic stops, Pedro Lopez is not Hispanic.

Neither is Jose Salas.

Or Pablo Toxqui-Zavala.

That's despite jail records showing that the three had brown skin, spoke Spanish and were from Mexico.

The three were mislabeled by deputies as white, a practice that has become a focal point in a lawsuit alleging deputies targeted Hispanics and the department covered it up.

More than 1,000 other people likely were mislabeled as well, according to a Tribune statistical analysis using an established demographic method to estimate Hispanics. (See end of story for how we did analysis.)

Police are supposed to accurately log races of drivers they stop so the state can monitor whether departments may be targeting minorities. Mislabeling them could hide racial profiling.

In examining department, state and court data from 2004 through 2009, the Tribune's investigation indicated:

•The problem grew worse each year. By 2009, the statistical analysis showed,1 in 3 Hispanics cited by deputies likely were mislabeled as white or not included in department data reported to the state.

•If mislabeling and underreporting are taken into account, the department's official rate of minority stops would have towered over its Chicago-area peers rather than appearing average.

•Department brass repeatedly missed warning signs of potential problems, even after a deputy complained that some peers targeted Hispanics.

Former Deputy Zane Seipler said the findings reinforce his assertion that he was fired in 2008 for complaining to bosses about racial profiling. The more he complained, the more mislabeling occurred to hide the profiling, he alleged.

"Any good cop could see there was a problem," said Seipler, who sued the department after his dismissal. "It's not rocket science."

The department's lead lawyer said Seipler was fired for falsifying tickets from two traffic stops. In an interview, James Sotos said the data indicate most mismarking was limited to two deputies, showing no department conspiracy to mislabel or target Hispanics.

But the agency has launched a fifth internal investigation, examining the practices of 51 deputies — about half the department's road force — to uncover any potential problems in mislabeling, stopping a higher-than-average rate of Hispanics or failing to log drivers' races.

"The sheriff is committed to making sure that there's not racial profiling going on," Sotos said.

The allegations underscore what critics say are major flaws in a 7-year-old state law that aims to gauge whether departments target minorities: The state provides no guidance on how to define race, and no agency is charged with verifying the numbers that each department reports.

In McHenry County, the revelations emerged from a bombshell allegation scribbled nearly four years ago.

'Accepted practices'

In a recent interview with the Tribune, Seipler said nobody ordered the alleged profiling — or openly talked about it. But he said he saw warning signs.

In 2006, the department began posting monthly lists praising deputies with high ticket and arrest totals, Seipler said, prompting younger deputies to compete. Seipler said he was told in 2007 by one deputy that a place to make easy traffic arrests was a predominantly Hispanic apartment complex where, presumably, some residents were illegal immigrants who couldn't get driver's licenses.

Seipler said that while he was on patrol, he heard certain deputies regularly inform dispatchers about arrests of Hispanics they had stopped for traffic violations.

That didn't seem to square with the minority population of McHenry County, where the state says 7 percent of drivers are Hispanic. Seipler said it seemed that some deputies, while not racists, were opportunists targeting Hispanics to boost ticket totals and win promotions. In those officers' zeal to snag unlicensed drivers, Seipler said, he feared they were violating the rights of licensed, law-abiding Hispanic citizens.

"I really didn't have any hard evidence," he said, "except for the fact that you hear what's going on over the radio, and you know what you can do as a police officer, and I couldn't fathom how they were doing it legitimately."

On a 2007 employee survey, the road deputy of three years scribbled a suggestion for more training to combat what he saw as racial profiling.

"Profiling and civil rights violations are accepted practices among a number of deputies," Seipler elaborated in the survey. "Statistics (tickets) should not motivate people to violate the Constitution."

He hoped supervisors would tell deputies to "knock it off."

Seipler was fired a year later.

He said he lost his job for speaking out, and he sued the department in federal court, alleging it violated his right to free speech. He ran for office, trying to unseat Sheriff Keith Nygren in the 2010 Republican primary, but he lost decisively.

The department said Seipler was fired for misdeeds unrelated to his complaint, alleging that he failed to arrest two unlicensed Hispanic teens and that he falsified tickets to hide it.

The department said it investigated Seipler's profiling complaints and found no problems. But three years later, a top-ticketing deputy offered evidence to the contrary.

Subjective labeling

Deputy Jeremy Bruketta was a rising star in the department, a prolific ticketer hired in 2007 and quickly promoted. But in an Itasca law office in December 2010, he couldn't avoid the obvious.

During a deposition, Seipler's attorney, Blake Horwitz, peppered the 27-year-old Bruketta with more than 130 names of drivers the deputy had labeled in 2008 as white, such as Pedro Lopez, Jose Salas and Pablo Toxqui-Zavala.

In each case, Bruketta agreed the names sounded Hispanic.

The Tribune analysis comparing drivers' names to census data on ethnicity indicate that for Bruketta's stops, he mislabeled as many as 19 of every 20 people with predominantly Hispanic surnames.

Bruketta, who remains on active duty, declined to comment for this article. He has denied targeting minorities.

The state law requires officers to use "subjective determination" to label a driver's race as Caucasian, African-American, Hispanic, Native American/Alaska Native or Asian/Pacific Islander.

Researchers who study profiling say some mislabeling is expected. Drivers' licenses don't list races, and the law offers no guidance on how to classify mixed-race drivers. The data suggest that Seipler also occasionally mislabeled.

Still, departmentwide, the Tribune analysispoints to a trend: In 2006, 1 in 8 likely Hispanics cited in McHenry were labeled as white or not logged. By 2009, that rate had risen to 1 in 3,the analysis suggests.

"That's a really high error rate," said Georgia Southern University Dean Michael R. Smith, a former police officer who has studied racial profiling for a decade. "That's disturbing."

The analysis found the vast majority of deputies labeled correctly most of the time. Of the department's 65 deputies who stopped 20 or more Hispanics in a year, five deputies appeared to have mislabeled Hispanics more often than not.

They include another former deputy who stopped 38 people with predominantly Hispanic surnames in 2008, according to the analysis, but logged only one as Hispanic.

Among that deputy's "white" drivers: Miguel Perez-Reyes.

Interviewed by the Tribune, Perez-Reyes said he was not sure how anyone could confuse his ethnicity.

"I'm dark," he said, in broken English. "I don't know how (they) said I'm not Hispanic."

Racial profiling?

Perez-Reyes, 44, a supervisor at a Kenosha food processing plant, recalled how he drove to McHenry County in November 2008 to visit family.

Approaching a four-way stop sign, he saw a patrol car parked to the left. He said he stopped completely, but the deputy cited him for running the sign. He didn't want to take a day off work to fight the ticket, so he mailed in the $75 fine.

He never thought he was targeted for being Hispanic, but when told of the Tribune's analysis, he said he was now not so sure.

Civil rights advocates suspect mislabeling is more than coincidence.

"It raises a very hard question whether officers are trying to avoid accountability," said Adam Schwartz, a lawyer with the American Civil Liberties Union.

Horwitz, Seipler's attorney, said in court records that five other department employees have alleged that some deputies targeted minorities. All five either did not return messages or declined to comment.

Racial profiling is difficult to prove. That's why researchers push for data collection, to flag potential problems. In 2004, the first year data were collected, McHenry County's indicators were high.

Statewide, minorities were 15 percent more likely to be stopped than what would have been expected based on their respective populations.

McHenry County's disparity rate, however, was 65 percent, more than double that of the Chicago area's five other sheriff's departments.

The county's rate, however, began dropping dramatically in 2007, and by 2009 was average for area sheriff's departments.

But when accounting for apparent mislabeling or for races that aren't marked, the analysis suggests McHenry County's rate returns to the top of the pack.

Department lawyers contend the state profiling ratings are flawed, and experts agree it's hard to estimate accurately how many minorities are driving through an area, particularly because Illinois uses 2000 census data to do the calculations. It's more telling, experts say, to compare officers within departments.

That's where apparent mislabeling had the biggest effect on individual totals. Among the department's top-ticketing officers in 2008, Bruketta and the former deputy reportedly stopped minorities at the lowest rates. They rose near the top, however, when the Tribune used the census analysis to identify likely Hispanics.

Mysterious directive

Bruketta had worked at two downstate departments before becoming a McHenry deputy, and he testified in a deposition obtained by the Tribune that he used to label Hispanics correctly — until one day in 2007.

That's when, he testified, someone whose name he couldn't remember told him to start labeling Hispanics as whites. He began logging Hispanics rarely, only when their ethnicity came up in conversation.

Otherwise, Bruketta testified, "If they had a Mexican (skin) tone, I'd mark them down as whites."

Results of the analysis also change about that time for the former deputy who stopped Perez-Reyes. During an earlier stint on patrol in 2005 and 2006, the deputy had labeled most Hispanics accurately. But after returning to patrol in 2008, the deputy labeled as white nearly every driver who was stopped with a predominantly Hispanic surname.

All the while, three earlier internal investigations overlooked potential flags to mislabeling. In the investigations, reviewers:

•Didn't study deputies with high rates of minority stops. A check could have found six other deputies whose 2007 rates were double the estimated rate of minority drivers. One later said in a deposition that he found reasons to stop drivers by aggressively searching police databases in a way that disproportionately impacted Hispanics and that experts say can mistakenly target law-abiding citizens.

•Didn't address stops in which deputies left the race blank in official stop data. Those records weren't counted in the state's logs of stops.

Bruketta started a fourth internal inquiry after complaining that another deputy was spreading rumors that Bruketta was the "racial profiler of the department." Instead of reviewing Bruketta's stops, the department focused on who was spreading the rumor. Records show a lieutenant dispatched a sergeant to interview someone who had heard the rumor. The probe ended with the accused saying he had been directed to submit a memo saying he wasn't alleging Bruketta profiled Hispanics.

Case closed — again.

Only after learning of Bruketta's mislabeling last fall did the department begin a comprehensive review of deputies, which is ongoing.

How analysis was conductedSince 2004, police must tell the state details of every traffic stop, including the name and race of each driver. The state uses the information to determine how much more likely minorities are to be stopped in individual jurisdictions, but it doesn't check the accuracy of police departments' stop logs.

To do its audit, the Tribune turned to three databases containing tens of thousands of records:

•McHenry County court data of traffic cases from 2006 through 2009.

•McHenry County sheriff's data of 2004 to 2008 stops logged with the state.

•A Census database that lists the odds of Hispanic ethnicity based on last name.

Drivers' names from the court and department data were compared with names in the census database to find each driver's likelihood of Hispanic ethnicity. Mirroring methodology of similar research, drivers were deemed Hispanic only if their last names were 70 percent or more likely to be Hispanic.

The department data were used to analyze accuracy of labeling by deputies — comparing the rate of likely Hispanics with what each deputy logged. But the department database lacked records of all cited drivers, so the Tribune used the court data to determine the extent of mislabeling and incorrect logging departmentwide. The rate of likely Hispanics, as shown by the court data, was compared with the rate of Hispanics that the department told the state it cited.

In doing the departmentwide analysis, the Tribune counted only the labeling of likely Hispanics as white, because such mislabeling artificially improved the state's rating of the department. Deputies at times also labeled likely Hispanics as other minorities, such as when a driver who looks like Sammy Sosa was labeled African-American. The analysis didn't count that type of mislabeling because it didn't affect the state's rating.

Researchers say the census-based analysis is commonly used in studies but has limitations: It counts non-Hispanic women who marry Hispanics, and misses Hispanic women who marry non-Hispanics. It also misses Hispanics who have nontraditional surnames. With the limitations taken into account, it's generally considered an undercount of Hispanics.